Federal Obscenity Rule Nixed In Internet Porn Case

CaptainEbo writes "A court has declared the federal anti-obscenity law unconstitutional in a criminal case against an Internet porn distributor: 'We find that the federal obscenity statutes burden an individual's fundamental right to possess, read, observe, and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.' The court's decision rested in part on Lawrence v. Texas, the Supreme Court case striking down anti-sodomy laws. Under Lawrence, said the court, 'upholding the public sense of morality is not even a legitimate state interest.'"

Comments

about time

[lordkuri]

upholding the public sense of morality is not even a legitimate state interest.

it's about fucking time! I'm getting so sick of these self-righteous jackasses that seem to think I have to live my life according to *their* beliefs.

Re:about time

[hunterx11]

You miss the point. In a free country, people with different beliefs can co-exist, and do what they want as long as they don't infringe on the rights of others. Having a democratic totalitarian state is not the only possibilty, and it is certainly not one that the U.S. should choose.

Re:about time

[TWX]

The problem is that people will increasingly tailor laws to restrict behaviour that has no bearing on them whatsoever because it offends their beliefs somehow. Basically antisodomy, antifornication, antidrinking, antidrug, and antipornography laws all fit the bill for many of these people. It doesn't matter that they don't engage in any of these activities, they don't want anyone else to engage in them either, even when these activities don't have any victims by definition. By converse, I don't do what these people do (congregate and evangelize about their invisible best friend who sees all, knows all, and needs money) but I don't work toward prohibiting them from doing so, and I don't tell them that they have to be like me. I simply want them to let me do what I want to do so long as I don't victimize anyone in doing it. That's the very important difference.

Re:about time

[NDPTAL85]

Why are you libertarians unable to see the value in any law or regulation?

A car is a sometimes many thousand pound moving piece of metal. You don't think the government has an interest in making sure that people know how to operate them properly?

The AMA sets standards so you don't get doctors who think that washing his hands is well "a waste of time".

But hell the common sense built up over the centuries isn't worth a damn if it leads to a rule or law that saves lives right?

Re:about time

[magefile]

OK ... and when you (or someone else) takes a non-FDA drug, does that mean you waive all rights to suck up my tax dollars when you show up at the emergency room?

Re:about time

[snooo53]

Why are you libertarians unable to see the value in any law or regulation?

Now hold on here. Of course most libertarians, just like anyone else in a civil society, see the value in laws and regulations. People always stereotype Libertarians as wanting to start some anarchist society, which couldn't be farther from the truth. The whole idea behind Libertarianism is that people have a fundamental right to do as they please as long as it doesn't infringe on the rights of others. And when someone does infringe on the rights of others, they must take full responsiblity for their actions. Of course we need laws and regulations... how else would you decide when someone does something wrong?

There is such a huge disconnect between common sense and many laws and regulations in this country. How is it that we trust 18 year olds to operate guns and missiles and WMD's and yet we can't trust them to drink alcohol until they are 21?! Why is it against the law to circumvent copyright protection to play a DVD in Linux? Why do public protests have to be carefully planned out and approved by the local govt?

With any group you get fringe people who would ignore thousands of years of common sense. But the vast majority of libertarians are a lot more moderate in their views than most people outside the party think

Re:about time

[ahodgson]

As long as you waive the same rights when you eat at McDonald's, or drink beer, or drive over the speed limit, or participate in dangerous sports.

Oh, not interested? Guess what, living is dangerous. That's why we have emergency rooms. Not that I particularly think they should be taxpayer funded, but excluding only your pet peeve is stupid.

Re:about time

[Scrameustache]

Lets start with welfare, it's there because people deserve a second chance (a moral decision) and people need a helping hand (again a moral decision). Now even if I agree with those sentements, it is easily my choice to decide not to help people out with my money. After all, it's my money, and I'm an adult, I can decide what I want to do with it. Yet, the government takes my money and gives it to poor people. They force me to be charitable, thus forcing a particular beleif system on me. You choose to watch porn, I choose to save my money.

Lets see. First of all, watching porn doesn't hurt anyone. Being unable to buy food does.

Secondly, the wellfare of the state is dependant on the wellfare of it's citizens. Wellfare isn't a purely moral endeavour, it's there to provide the population with bread and circuses so that they will be content and do not rise up against the government.

Every particular set of laws which forbids something that doesn't violate the rights of another person is a moral decision imposing a set of beleifs upon society. Porn, obcenity, drinking and gun ownership are all variations on the same thing.

The right to health and security is harmed by lack of food or overabundance of guns.

Gun laws aren't meant to prohibit gun ownership. They are meant to regulate gun ownership, just like cars can't be driven in public roads by anyone or medecine practised by anyone, guns shouldn't be allowed in everybody's hand. It's a matter of public safety.

Lumping gun laws in with obscenity laws is absurd. Guns injure and kill, pictures of genitalia don't.

Re:about time

[jonnystiph]

OK ... and when you (or someone else) takes a non-FDA drug, does that mean you waive all rights to suck up my tax dollars when you show up at the emergency room?

Two things, first and foremost. In most "non-FDA" drug, emergency room related incidents; it is a matter of life and death. Most "hard drug" consumers are breaking laws they don't want to face until they have too. Are you going to say that your tax dollars are more important than someone's life. Even if they may be a "drug taking fiend". Sometimes good people make mistakes too.

Second point, I am willing to wager that emergency rooms see ten times more drunk driver casulties than drug OD's.

So what about people that drink and drive? Are they sucking up your tax dollars too? That's an FDA approved drug.

Re:about time

[coaxial]

Now hold on here. Of course most libertarians, just like anyone else in a civil society, see the value in laws and regulations. People always stereotype Libertarians as wanting to start some anarchist society, which couldn't be farther from the truth. The whole idea behind Libertarianism is that people have a fundamental right to do as they please as long as it doesn't infringe on the rights of others. And when someone does infringe on the rights of others, they must take full responsiblity for their actions. Of course we need laws and regulations... how else would you decide when someone does something wrong?

That all sounds good and no one would object to having laws that limit individual freedom the least, while simultaneously protecting society as a whole. Like the old adage says, "The right to swing your fists stops where my nose begins."

The problem with the libertarian party, and the reason why they're viewed as antiregulation zealots, is because that's the image the party's official statements paint.

Now I could go through their platform and official statements over the years, and write treatise on how the perfectly reasonable political philosophy has been perverted and drastically undermined by the reactionary zealots of the Libertarian Party, but I won't. Instead I'll lillustrate the point by examining the party's opposition to the thousands of year old role of government ensuring the health and safety of its citizenry. A role that is not only considered reasonable by the vast majority, but also popular with the citizens. A role of government that widely regarded, that the LP's oposition to which is typically used by the party's detractors to illustrate just how out of touch the party is. I'm going to talk the about meat inspectors.

The Libertarian Party is against meat inspectors because people are smart enough not to buy infected meat, therefore anyone selling infected meat would go out of buisness. That all may be true, but there's typically no way for the average person to stand at the meat counter at the local Kroger's and start testing for E.Coli.

Furthermore, they argue that the "USDA Approved" sticker lulls the public into a false sense of safety since all the meat they buy is "USDA approved". They then turn around and argue that this "false sense of safety" doesn't exist with the ubiquitous "UL Approved" stickers because Underwriter's Labs is an industrial organization. Figuring out why the average citizen would be deadened to a sticker because of who was putting them on rather than by the sticker's ubiquity is apparently left as an exercise for the reader.

The LP in every case touts "voluntary self-regulation of industry", like a mantra. The sole reason for this is "less taxes". Yes, VSR would ideally result in less taxes, but there's a catch. VSR doesn't work.

There exists an intrinisic advesarial relationship between the regulator and the regulated. This doesn't mean that they're always at each others' throats, ideally they're not, but it's not, nor should it every be, an relationship between equals. VSR puts the regulated in a superior position over the regulators. First, those being regulated decide what the rules should be. Typically, they're initially set just beyond current practices, because VSR is almost always introduced as a fix to an industry-wide PR disaster. So right off, the regulations are weak. Next there's no penaltys for violating even these regulations because they're voluntary. If you group didn't comply, it's because they didn't have to. So in the end, nothing changes, and the VSR industry is just as unregulated as before. Conversely, when strong government regulations exist, and when there's proper funding of enforcement of the the regulations (I say this, because cutting of enforcement budgets has been a popular tactic of late because it effectively eliminates the regulations, without the political fallout of actually eliminating the regulations.) there's actually penalties such as fines and possible jail time for violators.

Re:about time

[MacJedi]

It's fairly simple: stop employing them. As long as there exist companies who are advantaged by illegally employing illegal immigrants (because they can pay them less, don't have to give them health benefits, can fire them at will, etc.) there will be an illegal immigrant problem.

It's pretty vicious really, because these same employers don't want legal immigrants, whom they would have to pay fairly. They want the immigrants and they want them illegal. And they don't especially care that you, the tax payer, have to foot the bill for services to them.

Re:about time

[rhakka]

actually, you can't make a statement like that at all. Heart disease is a major killer here in a america, and car accidents are big too. Exactly how big do you think unapproved drug problems would really be? Cause it would have to be HUGE to compare.

Re:about time

[Monkelectric]

It's fairly simple: stop employing them.

What if, the same people making money off them were using that money to bribe state and federal officals in charge of the whole mess?

good reasons

[BorgCopyeditor]

If it were a legitimate state interest, then we would need laws banning sloth and greed, too, and no one here in the U.S. really wants that.

Re:good reasons

[Znork]

Yes, murder is a crime against the state, as it deprives the state of taxpayers.

Re:good reasons

[gaijin99]

I disagree with your basic assumption that laws are based on what the state has an interest in outlawing. The state exists at our sufferance and for our purposes, not the other way around. It can be argued that the state has a legitimate interest in forcing the citizens to be healthy by mandating diets and exercise. But in the US, and in other free countries, the citizens do not exist to serve the state.

I would argue that murder is illegal becuase it harms a citizen without that citizen's concent. Same thing with theft, battery, etc. But when citizen Foo views pornography it does not harm citizen Bar. It might offend citizen Bar, but being offended is not being harmed.

Now, on the "your right to punch ends where my nose begins" principle, I can see banning public displays of pornography. Citizen Foo has a right to read Playboy, that does not mean that citizen Foo has a right to inflict Playboy on unwilling participants. Similarly your car stereo can be as loud as you want, just as long as you don't force other people to listen to your music.

But if someone claims that the mere existance of things they disapprove of is somehow harmful to them (or anyone else) I will mock them.

Re:Yay for free speech...

[CaptainEbo]

That's not what this case says. Laws prohibiting murder are passed under the "police power" which allows states to regulate in order to preserve the "health and safety" of individuals. In other words, murder laws are health and safety laws, not morality laws.

Supreme Court ruling needed now

[Fjandr]

The best thing that could happen now is for this to be appealed to the Supreme Court, to have them grant certiorari, and to find along the same lines as they did in 2003 in Lawrence v. Texas.

It's about time that it's been determined that "public morality" does not extend past public places. Then again, there has been much absurdity in both laws and judicial decisions for as long as there have been laws and judicial decisions.

Hopefully this is the start of a trend that will continue. The major "if" is who GWB will put on the Court after Rehnquist retires/dies. However, with what the Democrats have been doing regarding nominations to any post call into question whether anyone could possibly be confirmed onto the Court. We might just have a vacancy forever, because if the Democrats can do it, so can the Republicans if a Democrat wins in 2008. :)

Re:Supreme Court ruling needed now

[Fjandr]

I wasn't aware of either of those. Both are good if what you say is true.

It's not that I support Shrublet and his neocons, but filibustering appointments because of political grudges is ludicrous. There's either a valid reason to keep someone out of office or there's not. If there's a valid reason, it should be laid out on the table. If there's not, suck it up, your party lost, try harder next election.

Re:Supreme Court ruling needed now

[slothman32]

To extremize, and get modded troll, you could say that just because shrub "won," we don't even know because of lack of receipts, he has a mandate to put judges on the bench that will make our once great country as free as a fourth world. If the judges wanted to make an Orellian state then even if the president was elected she still shouldn't be approved. If a judge will declare laws that you think are in fact unconstitutional then they should not be approved. Regardless of who is president. If I think that gay marriage is not just right but in fact not deniable by the gov't then a judge who will say it, against my interpretation, is not with the Const. then I have a right to not approve them since they really will be activist. That is they will create a ruling that actually is against the Const. instead of the usual so-called activist judges who in fact remove laws that are against it but also against ones created by the legislature.

Re:Supreme Court ruling needed now

[Fjandr]

I think that buried in your somewhat confusing post is agreement with the reasoning that a valid argument should be laid on the table if one is to be found. If a judge is going to use the Constitution for toilet paper, that would be a valid reason to oppose their confirmation, would it not? I wasn't opposing opposition to confirmations, just the way the filibuster rules have been used recently to indefinitely delay confirmation without clearly stating a valid reason (even a specific ideological reason) for the opposition.

Hell Freezes Over!

[phaln]

It's a relief to know that there are still Constitutionally-adhering judges out there looking out for individual freedom rather than the state.

Re:I'm with you here.

[lordkuri]

it doesn't matter if it's porn or whatever... the judge summed it up perfectly. It is not the right nor the job of government to tell an adult person what they can see/think/read, and anything of the sort *is* an infringement on my liberties.

I also find it pretty funny that the bible-thumping types that are always so vocal about porn had a conference in some hotel a while back, and that hotel reported a 600% increase of their in-room porn rentals over that weekend... pot, meet kettle.

Hmm

[mattyrobinson69]

const...err...constitution?

that was one of those things they used to have back when everybody worked down the mines in the UK, and walked to work, nine miles up hill, and back nine miles up hill, in the wind and hail, every day, wasn't it?

But seriously, thank god somebody remembers the constitution.

Dangers in aggregation of power to the feds....

[i_want_you_to_throw_]

Remember when Republicans were all about not getting involved state issues? (pre-Reagan) What happened is that they have discovered that it's so better to aggregate the power into the hands of the few via legislation and control the populace and impose "morality" that way.

Take the gay marriage issue. Should this REALLY be a federal issue? Of course not and thank heavens that Sen. McCain pointed out that such a federal law would interfere with "state's rights".

Federal anti-obscenity laws aren't any different. What doesn't play in Peoria could be considered as quite tame in NYC.

Re:Yay for free speech...

[mattyrobinson69]

If murder didn't harm anybody, you could:

When you look at porn, your not restricting anybody elses freedoms. When you kill somebody, your restricting somebody elses freedom to live.

Debates Like This A Part of Freedom?

[Anonymous Coward]

From the article: "entertaining lewd and lustful thoughts stimulated by viewing material that appeals to one's purient interests . . . . is immoral conduct even when done by consenting adults in private."

Gotta love logic like that. Gotta love how our country is obsessed with "morals" in the bedroom (or computer room, wherever that may be) that affect no one other than the consenting adults involved. Go read some Kant and later responses and rejections to Kant to get a feel for what more substantial morals are like.

That said, the puritan and sexual freedom argument has been going on as far back as we have records, especially in opulent societies such are ours. Important to have both sides, but equally important that a balance is maintained. Often time one isn't, and more often seems to move towards the puritan perspective than towards "Babylonical Chaos" (as a 16th century sermon I recently read put it). But then again, our current perspectives on sex are hardly eternal, and we are forced to see all other eras' sexual perspectives through our own. "We are not a mirror for history" to paraphrase Goethe, "but history is a mirror for us."

All that said, I'm glad to see this struck down. I should be able to do what I damn well please as long I don't violate another's agency in my own home. We all should, including having odd ideas about what the highest form of morality is, as this country wonderfully shows.

Re:I'm with you here.

[Tassach]

I also find it pretty funny that the bible-thumping types that are always so vocal about porn had a conference in some hotel a while back, and that hotel reported a 600% increase of their in-room porn rentals over that weekend... pot, meet kettle.

While this does play into my personal stereotype of fundies being sexually repressed hypocrites, I'd need to see some documentation before I accept it as being true. Any sources for this fact?

Related topic (Censorship) reformatted :)

[ScruffyScrode]

Censorship
By Luke Green

Our constitutional right to freedom of speech has been under fire for quite some time now, often with the support of the people. This attack is what we call censorship, and it is damaging our society. When was the last time you watched TV show with a bigot yelling profanities at another man with your children? Why? If your answer is that you want to protect them, that is definitely a good answer, but a flawed reason for censorship, as I will attempt to show.

It is hardly intelligent to attempt to mandate morality, because what one person may find immoral, another may find completely harmless, and vice versa. For example: showing a man eating a hamburger on television is relatively commonplace. PETA (People for Ethical Treatment of Animals), however, regards this as highly immoral. Does this mean we should ban showings of such things? No, because it is not unanimously agreed that eating animals is immoral. Most people enjoy it every day.

The FCC regulates broadcasting in the U.S., often fining broadcasters for "indecent" broadcasts. Certain words are blacklisted, even though not everyone agrees that these words are immoral, and many people use them in everyday conversation. What if suddenly you were disallowed to use words that you feel are completely benign, would you be okay with that? Would you be fine with other people controlling how you communicate?

There are many reasons we should have absolute freedom of speech, the clearest of all being that we don't want government controlling what we can and cannot say, hear, or read. There is another, less obvious reason we should have this great freedom: so that we may be able to view, and understand the fallacies of the ignorant. I contend that if we do not expose our children to the ignorant, they may become unable to identify ignorance. The common counter-argument to this is that people want to preserve their child's innocence. Innocence is when a person is free from guilt, not when a person is free from understanding guilt.

Would you say that a person who does not understand that theft is wrong is more or less likely to steal? Clearly they are more likely to steal, because a person who doesn't realize the damage it may cause is more carefree when it comes to theft. This has a perfect analogue with censoring "bad" material. If you do not show them what is bad, they will be left to figure it out completely on their own, which may result in the exact opposite of what you intend.

Censorship is interfering with your right to decide what your child can and cannot view. I know that it seems like the censors are on your side, but in reality you are a tool that helps them keep their jobs, and impose their moral beliefs on future generations.

In conclusion, a person of character will stand up for what they believe in, but a truly great person will stand up for everyone's individual right to believe whatever they want to believe. So please feel free to preserve your child's innocence, but please do not damage their moral acuity by supporting censorship.

good for them

[GtKincaid]

It certainly is a victory for the personal freedoms of people over in the USA.
The right to view so called illicet material has nothing to do with the gouvernment.
What consenting adults choose to do in the privacy of their homes is up to them, If they wish to publish it on the internet for free or for profit then it's up to them aswell.
If John Doe wishes to go online and look at two(or more ) consenting people "Getting jiggy" then why the hell does any gouvernment have any right to restrict a persons freedom in this manner.

This is a a wonderfull step towards ensuring your rights and i for the first time in a long while have read a story about the USA courts and not been down hearted.
alot of the religious or right wing people may find this stuff shocking , personaly im not a pr0n fan myself but and this is a big but(depends on the porn ...boom tish..) It is a persons right to choose what they view and enjoy aslong as it respects the rights of others . If you dont like porn then (here comes the cliche) Dont buy it , dont read it , don't use it.
Sure as hell dont try and stop other people from doing what they enjoy.
Lastly i must say again how good it is to see a positive news story about peoples rights being upheld

Re:More Information from Pittsburgh Sources...

[CrankyFool]

It's quite probable that a Pittsburgh judge _would_ be more conservative than a CA judge. The mistake the authorities might have made -- and it's a natural mistake you make here also -- is in thinking that 'conservative' is a label applied to people who have conservative social stances only, rather than people who also have conservative judicial stances.

It wasn't too long ago that 'conservatives' were the people who were loathe to add more laws and regulations that interfere with people's ability to do what they wanted, and were arguing we needed a very strong, clear harm to be present in an activity before it was legislated against. These days, the neocons and social conservatives (and Christian Fascists, frankly) have stolen the 'conservative' label and have started to label anyone who doesn't agree with their social policies as a liberal (with the obvious implications that liberals are the ones taking down this country, corrupting our youth, and providing hostelling services to travelling al Queda terrorists, of course).

It's perfectly within reason that a conservative person would find an anti-obscenity law ludicrous and offensive, and it's good that this one did.

Courtship

[Doc Ruby]

We're getting at least 3 (of 9) Supreme Court justices under Bush in the next few years. And possibly Clarence "No Questions" Thomas as Supreme Supreme. Soon these activist "mind your own business" judges won't stand in the way of our glorious Christian nation's compassion towards our perverts.

Re:I'm with you here.

[Tassach]

Granted, it's porn...but is it really their--or our--business what people get off with?

No, as long as the all the participants are adults who are capable of, and have given, informed consent.

Re:I'm with you here.

[conteXXt]

"It is not the right nor the job of government to tell an adult person what they can see/think/read, and anything of the sort *is* an infringement on my liberties.
"
you forgot one.....

ingest. It's none of their business what I put into my body either.

Re:Yay for free speech...

[Anonymous Coward]

"Amoral" means "without morality", you mean "immoral" i.e. "contrary to morality".

A tiger is amoral. A politician is immoral.

And how does freedom-loving talk radio respond?

[Pentomino]

And how many nanoseconds elapsed before the right-wing talk radio choir started their Banshee-like wailing over "activist judges"?

Re:And how does freedom-loving talk radio respond?

[DigiShaman]

As Libertarian with republican family values, I'm very happy to hear about this ruling! But as for the comment about hypocrisy, this is nothing new. It's called "politics".

Re:Yay for free speech...

[Fjandr]

Can't steal because it involves violating someone's rights.

Can't murder because it involves violating someone's rights.

Can't have sex with children because it is an abuse of the obligations of authority.

Can't attack people on the street because it involves violating someone's rights.

Decent laws are written with protecting rights in mind. These laws are wholely separate from laws written with preventing the "offending of polite sensibilities."

Finally

[dmarx]

A court has acted to limit the powers of government. The government has one job, and one only-ensuring that nobody's person or property is harmed without their consent.

Wrong, actually

[gaijin99]

What you just described is what Thomas Jefferson, among others, feared: the "tyrany of the majority". Contrary to popular belief the majority cannot simply pass any law it wants to. The Constitution is specifically designed to prevent the majority from passing certain kinds of laws. The Constitution can be changed, but that takes more than a simple majority, it takes a 3/4 majority in 3/4 of the states.

The reason for all that, naturally, is to protect the minority from the majority. If 51% of the pouplaiton wants to censor porn (or anything else) its simply not enough. I think our founders were quite wise to encode freedom into the Constitution and make it extremely difficult to remove those freedoms from the Constitution.

It is the government's business to do what people tell it to, but within limits.

Re:Wrong, actually

[koko775]

Uh, 75% of 75% is 56.25%. It takes around a simple majority, but it takes a majority spread around the nation, so that majorities in places that have a special interest in certain laws can't use power of numbers to push it through.

Re:The goal

[agraupe]

are you a retard??? it's the internet, and it can't possibly be "rated". How about parents watch for this sort of thing, instead of being morons. There's no reason why kids under, say, 9, should be allowed to surf the 'net alone.

You cannot legislate anything but morality ...

[svensky]

Are all of you people so stupid that you do not realise that all laws are codified morality ?

You cannot legislate anything but morality.

Unless you think laws against murder and theft are not moral laws ?

What are they then ? Are they simply based on the personal preferences of judges and politicians ?

If that is the case then why would you bitch like little kids when they legislate in a way you don't like ?

Why is it that supposedly intelligent people have such incredibly poor reasoning skills ?

Re:You cannot legislate anything but morality ...

[tmbg37]

You would be right about this, except for one thing. Laws against murder and theft are not to protect morality, but to protect one's rights, specifically the right to life and property. Laws against obscenity are not protecting anybody's rights, only infringing on them.

Re:You cannot legislate anything but morality ...

[wotevah]

Dude, think before you type, especially after touting how illogical people are.

Murder happens to *also* be an immoral act. However the law is not concerned with its morality as much as with the fact that it adversely affects another person.

To put it in another words. Just because an illegal activity happens to be immoral does not imply that a connection between legality and morality.

Re:You cannot legislate anything but morality ...

[wjeff]

You are so absolutely wrong, the laws against murder and theft are not laws for moral reasons. Government has one basic purpose and one purpose only, to maintain a monopoly on the use of force and coercion, and prevent the use of force and coercion by one citizen against another (policing) and by other countries/states against its own country/state (military).

This is the one area where both the Democrats and Republicans piss me off the most.

The democrats are being hypocrites as they are the ones always yelling about the republicans legislating morality, when what is welfare but moral legislation to force it citizenry to care for those less well off.

And the repubulicans are just as bad yammering about keeping government from over regulating and restricting our freedoms, and then they turn around and support laws which restrict our freedoms with regard to activities were there is no force/coercion/victim.

You can have the best reasoning skills in the world, and if your initial premises are flawed, you conclusion will be wrong every time.

I just wish people would really take the time to think about the consequences and effects of all this legislation, instead of the indulging the knee jerk, liberal pandering to "society's needy", and the conservative drive to a theocratic tyranny.

Goverment is supposed protect us from others, not take care of us, and not protect us from ourselves.

Anything else is an abuse of liberty!

This Will Be Appealled

[Landaras]

First, my background. I am an Evangelical Christian, as well as a future law student. I vote Republican more often than Democrat (not particularly liking either party), but am also a financial supporter of the EFF.

Now that we've gotten that out of the way, I fully expect this decision to be appealled. Remember, this decision is coming out of a district court, which is subject to review by Appeals and the Supremes. Specifically, I would argue that this case interprets Lawrence v. Texas too broadly, that Lawrence dealt with liberty concerns of regulating homosexual behavior vs. heterosexual behavior, and that this instant case incorrectly applies those liberty concerns to regulation of sexual obscenity regardless of "actor" orientation.

When it comes to sexual obscenity in general, there is more to consider than simply individual liberty. There is a undeniable cost to society from the dissemination of sexually obscene material, although I will be the first to admit the difficulty of quantifying that cost.

It is that cost that must be balanced against the demands of personal liberty.

I think it also important to bring up the still-binding 1973 case Miller v. California . That Supreme Court case held that sexually obscene material was NOT Speech, and as thus could be regulated by the several States.

The Miller Test for obscenity was that something is obscene if it "[A] appeals to the prurient [lustful] interest in sex; [B] portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, [C] taken as a whole, does not have serious literary, artistic, political, or scientific value [the SLAPS test]." (Bracketed text is my own.)

It should be noted that Miller applied to regulation by the several States, whereas this instant case deals with federal regulation. How and why different rules apply to the federal vs. the state government is beyond my current level of skill to discuss adaquetely and in-depth.

Personally, do I believe pornography should be banned? No. But I do believe that some level of regulation is warranted, and that the benefits of that regulation must be balanced against the cost to personal liberty.

- Neil Wehneman

P.S. I have previously posted additional thoughts on how pornography regulation is and is not justified based on specific secular criteria in an older Slashdot story.

Re:This Will Be Appealled

[Anonymous Coward]

First, my background. I am an Evangelical Christian, as well as a future law student. I vote Republican more often than Democrat (not particularly liking either party), but am also a financial supporter of the EFF.

And all of that matters, why? If you're going to be a lawyer, you best learn to leave statements like that at home when you're arguing about our laws.

Re:This Will Be Appealled

[ir0b0t]

The call for "some level of regulation" is not a very promising standard for a new jurist-in-waiting to urge upon judges considering obscenity cases.

The issue is whether a standard can be made to determine --- specifically --- whether a particular image is or is not obscene.

I checked your previous post but did not find any specifics about which specific images you think the state has a compelling interest to regulate.

Re:This Will Be Appealled

[Unordained]

Our nation's economics are founded on the idea that we don't know what's best for us, and that relying on individually greedy, selfish people will get us the 'best' results by hit-and-miss. Since when do we enforce what's 'best' for us by law? (Okay, we try to, but since when is it also a good idea?)

As you pointed out in your other post, you need to show harm done by pornography. But not just to self. It's not a crime to be depressed or self-hating, for example. We've even upheld your right to commit suicide, and hurting yourself on purpose (cutting) is at most going to land you in a mental hospital while someone tries to figure out if you're sane enough to have rights or not. Does pornography hurt others, then?

How does pornography harm others? The only way it could is through the actions of individuals. And the only way we could blame porn itself is if in at least the extreme majority of cases, the individuals involved had lost all self-control and were no longer responsible for their actions. But even then, consider drugs. Just because being drunk makes you unable to maintain self-control doesn't mean that your actions are now alcohol's fault in general. It means it was your fault for abusing of the stuff in the first place, knowing what it would do to you. Porn's the same way. If you're not going to be able to maintain self-control if you're around porn, then it is your duty to avoid it; if you do not, you'll still be liable for whatever you wind up doing.

And hurting society? Laws shouldn't attempt to maintain the society however it was 'before'. Laws don't get re-approved at each generation, at each person being born. We are what we are. Over the course of human history, have our societies changed for the worse so much we have a clear example of it? The world's always going to hell in a handbasket, yet we never really seem to get any worse. If you read, say, the Meditations of Marcus Aurelius, you'll see his society was pretty much exactly like ours, no worse, no better. Do we need our laws to try to prevent natural, small shifts in every-day morality? It won't do any good. A few generations later, someone will get up the courage to change the laws, and your efforts will be for naught. You can make change more painful, but you can't prevent it. So should we try to mold our society, our culture, through law? No. We can, at any point in time, attempt to punish our citizens for harming each other, and that's about it.

Re:I'm with you here.

[Anonymous Coward]

It's not about sexual repression. It's about maintaining a culture by force when it wants to change.

Re:I'm with you here.

[Martin Blank]

Thank you for making this point. There are some societal rules which the state should take an interest in enforcing, and among these is the prohibition of children being involved in certain activities, such as pornography. At this point, the vast majority of people consider child pornography to be wrong, and I doubt this is changing anytime soon. There is a need for certain limited restrictions on what may be viewed by people. The difficult part comes in drawing the appropriate line.

Re:Yay for free speech...

[Scrameustache]

1. Can't steal because it's amoral.
   
2. Can't murder because it's amoral.
   
3. Can't have sex with children because it's amoral.
   
4. Can't attack people on the street because it's amoral.

Actually, only #3 is a question of morality. The rest is a question of fear. People make these laws so they won't have their stuff stolen, be murdered, or be attacked in the street.

Pretty much every state in history that has had laws had these 3. The child abuse thing is a relative question of morality (not condoning it, just saying that it hasn't been universally decried).

Re:Strange

[hunterx11]

Then what is?

Upholding people's rights. Rights may be moral principles, but not all moral principles are rights.

Oh yes, exactly

[revscat]

A court has acted to limit the powers of government. The government has one job, and one only-ensuring that nobody's person or property is harmed without their consent.

That would be attractive if it weren't so brain-dead stupid.

Hint: If your political philosophy can fit on a bumper sticker, it doesn't reflect the real world. Libertarianism is nice and utopian and all, but it's also more of a religion than a successful political ideology.

Re:I'm with you here.

[Anonymous Coward]

Not to start a whole sub-thread on k-porn but I think it's important to draw a distinction between watching it and making it. That distinction is a big one. Making it should probably be illegal in most cases(depending on lots of factors), but watching it should not be. And the same should hold true for snuff films. The murder is the illegal part not recording the murder. The whole idea of the watching a videotape of a crime being illegal just seems wrong to me.

It's stragne that if I stumbled onto a crime scene where a thief was stealing a car or a mugger mugging someone or even someone getting shot I would not be breaking any laws just by viewing the scene, but if I view a videotape of the same event I can go to prison for it.

Not to say that I like kiddie porn or snuff films or any of the other gross stuff like animal sex or people pissing into each others mouths or whatever, but people should not be imprisoned just because they watch that kind of stuff. It can just be curiosity. Like people who slow down to look at car accidents.

Morality? What morality?

[Quattro Vezina]

There is nothing Immoral about anything consenting adults do with each other or anything a person does alone in their own home, as long as it doesn't interfere with anyone else.

I applaud this decision, but it really pisses me off when banning pornography is referred to as ``legislating morality''. It's not about Morality, it's about a group of Taliban-wannabes who want to control the private lives of Americans.

In fact, all just laws are based on Morality. Laws against murder, rape, assault, burglary, etc. are all based on Morality. Laws banning pornography, regulating so-called decency, banning drug use, establishing patents, etc. are not based on Morality. In fact, the latter category of laws are all highly Immoral.

Re:More discrimination against Christians

[randallpowell]

Well, it says that we live in a nation of freedom. Freedom for me to be a Buddhist, freedom to say you live in the Dark Ages, freedom to NOT watch porn if I so choose, and freedom for all to do the same or different.

Your 10 Commandants are nice and all but why must they be in a courthouse lawn? Why must Nativity scenes be in the same location? Seems to me, since the 90's, Christians got scared as people turned from Christianity for Wicca, Buddhism, atheism, etc and sought freedom to live their lives. If you want your rules posted somewhere, put it in your house. Just remember that we have freedoms and any diviation from that results in an American version of the Taliban which would mean fundie Christians are no diffeent than fundie Muslims.

Absence of proof is not proof of absence...

[katharsis83]

"Having the ten commandments in front of the courthouse is a government endorsement of christianity. Not having the ten commandments in front of the courthouse is not an endosement of athiesm."

Absence of proof is not proof of absence, my friend. Or in this cause, absence of the 10 Commandments is not proof that an opposing view is being endorsed.

The lack of ANY religious monument in front of a courthouse means the government is not condoning ANY belief; if we followed your argument, then not having the 10 Commandments present would mean the government is endorsing atheism, agnosticism, Buddhism, Islam, Hinduism, Shinto-ism, etc... But it's not. Not having a plaque of the 10 Commandments in front of the building just means the government is actually following the establishment clause of the Constitution.

How pissed would YOU be if we had a scripture from the Korean or Torah in front of a courthouse? How pissed would YOU be if before every court-session, the presiding Judge recited a passage from the Koran?

Think about that; now why is it suddenly ok if we replaced the word "Koran" with the word "Bible" in the preceding sentence?

There are hypocrites, and there are hypocrites.

[CustomDesigned]

The first kind sincerely believe that certain behaviours are good or bad, but personally find it extremely difficult to muster the willpower to live up to their own standard - and frequently fail. An example would be the doctor who is a chain smoker - but takes care not to smoke in the examining room, and can show you no end of pictures and statistics proving just how bad smoking is for your health.

The second kind of hypocrite does not actually believe his own propaganda, but merely uses it to manipulate others to his advantage. An example would be the Communist Party bosses in the old Sovient Union who would preach austerity and economic independence from the West by day, but buy Western luxuries in secret Party shops by night.

The Christian Church has always been full of the first type of hypocrite - and openly so. "I am come not to call the righteous, but sinners to repentance," said Jesus, and a modern bumper sticker says, "Please be patient, God is not finished with me yet."

Just as you should pay attention to the doctors advice about the dangers of smoking - even though the doctor fails miserably at taking his own advice, so you should take seriously warnings about the dangers of pornography - even if the preacher fails to take his own advice.

Perhaps you suspect that TV preachers are the second kind of hypocrite - not actually believing what they preach, but cynically manipulating their audience to keep sending in those donations. For the majority of TV preachers, I would agree with you. Even then, however, to the extent that they accurately portray the message they claim to represent, you should take the message seriously. As Paul said, "The one preach Christ of contention, not sincerely ... What then? not withstanding, ..., whether in pretence or in truth, Christ is preached; and I therein do rejoice."

Unfortunately, while scientific measurements may be getting more accurate, the accuracy of mass media preachers resembles the accuracy of marketroids at a tech company. They tend to modify their message to tickle the ears of the target audience. To see what a given Church teaches, take a Church document with some history behind it, ignoring recent "innovations", and then compare it with the sources (the Bible and history).

Re:More Information from Pittsburgh Sources...

[demachina]

"The have to get laws passed"

Not a problem at a Federal level if they dismantle the Senate filibuster as is their plan. Or if they gain a few more Senate seats in 2 years. The Democrats are in such a state of collapse they may well have a fillibuster proof majority in two years. They are already completely powerless in the House, I dont know why they even show up.

They Republicans have already taken to disappearing in to Republican only conference committees with Dick Cheney where they rewrite legislation to suit them and throw aside every compromise reached on the floor of the senate and house, then they shove the legislation through on a party line vote usually before anyone has actually read it. They are intentionally rushing through legislation authored in secret before anyone can read it or opposition can build. Writing the laws has already been largely hijacked by the New Republican Party.

A sterling example is someone snuck in a clause in the intelligence bill giving several Republican committee chairs unrestrained power to look at the tax records of anyone they choose, which has been used in the past to dredge up dirt on political opponents and dissidents, most recently in the Nixon administration. It was caught at the last minute and I think it was never discovered who put it in the bill. Is that how you think laws should be written in a Democracy?

"They need the support of juries (that is the population"

There aren't any juries in the appealate and Supreme Court where the decisions that ultimately count are decided.

The White House has already bestowed upon itself the right to arrest American citizens and citizens of any nation, without charge and without trial which, means without judge and jury, and deny them access to a lawyer or their families indefinitely. Jose Padilla is the most visible case of an American citizen, there are prisons around the globe filled with detainees from many nations who have no prayer of every seeing a jury. The Supreme court gutlessly punted the Padilla case on a technicality when it reached them last year. Once again if you have 4 extremists on the court they may well bless this shredding of the Constitution and the destuctions of the rule of law in America and around the world. You wont need juries after that. Maybe they can drum up a military tribunal for you for show and still be confident of the outcome.

"They need the support of judges"

As I said, this is at the top of the New Republican party's agenda for the next four years. A check and balance is that Federal judges have life terms so its hard to pack them in 4 or 8 years. The problem is ultimate power rests with the Supreme court. Even if the Bush administration loses in a lower court they can push most issues to the Supreme court especially if they have a sympathetic court.

The Supreme court has a reasonably healthy balance at the moment but its expected 3 moderates will retire in Bush's second term. Scalia or Thomas, the two rabid young right wingers may well get Chief Justice this year when Rehnquist steps down due to the thyroid cancer.

After Rehnquist Bush just needs to replace one more of the left to moderate justices and he will have a very right leaning court. One more after that which is likely in Bush's term and the have the court that counts packed. If the Senate has changed the rules on the filibuster of judicial nominees, Bush can appoint any extremist he feels like, as long as he holds his party together in the Senate.

"The American system is really well designed to stop dictatorship."

Yes it is, in particular because the founding fathers thouroughly expected it to happen, and as I recall many of them expected it to happen despite their best efforts. The one thing they couldn't do anything about is that the American people would shirk their civic duty and allow it happen, or in fact vote it in which they seem to be doing. Americans have for the most part abandoned their sense of civic duty, t

Re:Pr0n always leading the way...

[dcam]

Pr0n... is there anything it can't do?

Something positive? There are no positives in pornography.

Re:Bah, pay attention to religions...

[Jim_Callahan]

... if you're going to bash them. Christianity doesn't care if you're "free" or "open" with or in your life. It is concerned with following the person and (to a lesser extent, it seems) the teachings of the christ. Other religions threaten this because most of them are mutually exclusive in some manner with christianity, and thus damn the souls of their followers. Why Christianity particularly cares about souls, I have yet to determine. In any case, because following Christ is the only way to become closer to god after death, there is no hypocrisy whatsoever when a christian is concerned with persecution of christians and doesn't give a damn about the persecution of other religions. And their truth isn't supposed to relieve physical suffering, it's supposed to bring you closer to physical perfection. Note that the center of the religion was nailed to a tree and left to die.

You're probably right about the hatred thing, though. I'm pretty sure the manual pretty much forbids that nonsense.

Did I miss anything? Oh, right. Forgot to mention that nobody gave a damn wether or not Jesus showed up in 2001. Christians are nervous because they aren't the major moral force in american society anymore, and they haven't figured out what is yet.

Re:More Information from Pittsburgh Sources...

[instarx]

My decision was made in 2000. When Bush won the 2000 election, I knew I'd be voting for him again in 2004.

That statement alone indicates you are not competent or qualified to make intelligent political commentary. For all you knew Bush would break every campaign promise he ever made about honesty, openness and integrity in his administration, create a police state with secret imprisonments, cancel habeus corpus, approve the use of torture, invade a country under false pretenses, driven the US into a half a trillion dollar debt, begun the dismantling of social security, politicize the civil service, appoint incompetents throughout his cabinet, and preside over the worst four years of the stock market since the Great Depression, and then STILL wouldn't be able to think of a single thing he did wrong in the previous four years. But, oh boy, you knew you'd vote for him in 2004 when he won in 2000.

Its knee jerk reality-challenged people like you that just make me shake my head in wonder.

Re:Who says the culture wants to change?

[Alsee]

normalization of sexual attitudes and activities previously considered vulgar and obscene, and thus repressed or even banned outright by law.

That paragraph just screamed "interracial marriage" at me, and theme carries pretty well through your entire post. Did you know that as recently as 1967 (quite possibly during your lifetime) some one-third of all states had laws against interracial marriage? In several cases going so far as making it a criminal offense with up to 10 years in prison?

And of course you can easily complain about all sorts of ways society has gone to hell since the laws against interracial marriage were struck down.

And in case you missed the obvious, there is absolutely no constitutional difference between prohibiting interracial marriage and prohibiting gay marriage. Legally they are both attempts to discriminate which applicants are permitted to marry. Of course there are perfectly legal grounds for discriminating some acceptable applicants from other unacceptable applicants, such as that they have to be 2 humans capable of consent. However any attempt for the law to discriminate between applicants on the basis of race, gender, or religion is unconstitutional. Either the individual clause restricting applicants on that basis is null and void and all otherwise qualified applicants must be accepted, or if such single-clause-stickdown is not possible then the entire law granting any marriages at all would be invaild. No one would be able to legally marry in that state.

Oh, and I really love how you try to blame AIDS on "the newly open culture of male gay sex". First of all there would be no difference whether the culture was "open" or hidden in the closet. Secondly even if there were no gays at all it wouldn't have made much difference. Sure AIDS got a faster start in the gay community, but that also resulted in earlier detection and response. The vast majority of the spread of AIDS is from non-gay populations. We'd have almost the exact same "epidemic".

If you really want a health-based crusade you really should be declaring that hand-shaking is immoral. That results in more spread of more diseases than anything else.

But civilizations also have an interest in repressing at least the most extremes of the forbidden, for society's own good. And THAT is why we still have obscenity laws.

No, there is no legitimate use of government force for the sole purpose that some people dislike something. The primary legitimate purpose for law and the use of government force is in preventing one person from violating another person's rights, and responding to such violations when they occur. Sure there are other valid purposes for law, running a military and estabishing an economy and infrastructure, yada yada yada. But what we are talking about here is creating criminal law without any actual underlying crime against anyone's rights. You do not have a rigght not to be offended. If you don't want to be promiscuous, fine, don't be promiscuous. You don't want to buy porn, fine, don't buy porn. You don't want gay marriage "imposed on you", fine, don't enter a gay marriage.

There is certainly a legitimate government purpose in a law against violating someone's right not to be shot in the head. That is not a morality-law. That is a violatrion of someone's rights and it is a crime. As the court ruled, public morality is not a legitimate state interest to criminalize things that merely offend public's sense of morality.

You can't force people into heaven by holding a gun to their head. People are perfectly free to choose to go to hell. If someone is being "immoral", but he is not voilating any of your rights, then you have no buiness pulling out a gun and forcibly imprisoning him for it.

obscenity laws. Now, if you disagree with them, then work to change that. BUT...simply bitching about the laws won't accomplish anything.

In case you hadn't noticed this entire story is about changing the law by ha